Copyright Dispute over Marilyn Monroe’s “Last Sitting” Goes to Trial

Marilyn Monroe was one of the most iconic figures in the 1950s. She was a model, actress, singer, and has been photographed by famous photographers from all over.

In 1962, fine art and commercial photographer, Bert Stern, photographed Monroe for Vogue over the span of three days at the Bel-Air Hotel in Los Angeles. These images, over 2,500 of them, were the last photos taken of Monroe before her death on August 5, 1962; the images are known as the “Last Sitting.” Almost one month after Monroe’s death Vogue published a story about her and used six of Stern’s images from the “Last Sitting.”

In 1982, Stern detailed his work with Monroe in a 188-page book titled, The Last Sitting. Prior to the book’s publishing, Stern signed an agreement with William Morrow and Company, Inc. that stated he was the “sole author and proprietor of the work” and the images used would not “infringe upon any copyright or proprietary right of any third party.” On November 15, 1982, the book was registered for copyright, registration certificate number TX0001024270.

In June 1992, Stern published a second book with German publisher, Schirmer/Mosel Verlag GmbH, titled Marilyn Monroe: The Complete Last Sitting. Prior to this agreement, Stern obtained all publication rights from William Morrow.

On June 26, 2013, Stern passed away. Shortly after his death, his estate obtained copyrights to all 2,571 images taken in the “Last Sitting,” copyright registration certificate number VA0001923509.

A few years after Stern’s death, his estate began to see unlicensed images from the “Last Sitting” sold on online retail sites such as Amazon, OnGallery, and eBay. In an attempt to have the images removed ,“takedown notices” were sent to eBay from the Stern trust. The Monroe images sold were modified with jewels and listed by twin sisters Lisa and Lynette Lavender, who were long-time assistants to Bert Stern.

Stern’s widow, Shannah Laumeister Stern filed a lawsuit against the sister stating they reproduced, offered, and sold images without a license which constitutes copyright infringement to images that are copyrighted by the Stern estate.

The Lavender sisters argued that the copyrights to the photographs belong to Vogue publisher, Condé Nast, and that the photographs were “works for hire.” According to the 1909 Copyright Act, the employer is regarded as the author unless a contract or written agreement states otherwise. The sisters also alleged that Stern gifted them with images of Monroe before his death and that he wanted them to modify and sell them after his death.

The two questions presented to the District Court were one, is Stern, and “the successors to his rights – the rightful owners of the copyright interests in these photographs?” And two, “assuming Stern was the rightful copyright owner, did Stern gift certain photographs to the Lavenders, and did he authorize the Lavenders to make, modify, and sell, following his death, copies on the Monroe photographs?”

The Court ruled that Stern, and now his successors, are the rightful owners of the photographs. The court stated, “even if Stern’s 1982 narrative could be read to support a work-for-hire theory, such an inference would be vastly outweighed by the strong circumstantial evidence that Stern owned the copyright to these works.”

On the second matter, the Court, in arguendo, however, found that if the sisters were the rightful owners of the images under the “first sale” doctrine it was fair use for them to sell them to internet sites for re-sale. However, this holding does not “dispose of any claim brought, because the Lavenders’ ownership of Stern’s photographs is disputed.”

The “Court denies the parties’ cross-motion for summary judgement, with one limited exception: the Court grants summary judgment for plaintiffs on the Lavenders’ second counterclaim, alleging a violation of 17 U.S.C. §512(f). The Court has also resolved, in the course of this decision, certain underlying issues that, while not resulting in a grant of summary judgement on any claim, affect the scope of issues to be tried. These include the issue of ownership of copyright to the Last Sitting photographs and the Lavenders’ right, under the doctrine of fair use, to use images of works – assuming they own such works – to market those works for sale on the Internet.”

The case is now set for trial.

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